ATTENTION ALL EMPLOYERS: DOL ISSUES NEW GUIDANCE FOR REMOTE WORKERS AND FOR INTERMITTENT USE OF FMLA LEAVE

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By Catherine Williams, Esq.

In February 2023, the federal Department of Labor (DOL) issued a new Field Assistance Bulletin providing guidance as to how the DOL will interpret certain provisions of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) with respect to employees working remotely from home.  The DOL also issued its first Opinion Letter in several years, FMLA2023-1-A, clarifying employers’ obligations to provide intermittent leave under the FMLA in cases where an employee requests the ability to work a reduced schedule due to a serious health condition.

New FLSA Guidance

First, the DOL confirmed that under the FLSA, the same rules for compensating employees for break time apply regardless of whether the employee is working at the employer’s worksite or at home. In either case, short breaks of 20 minutes or less must be treated as compensable time. However, a longer break need not be treated as compensable time, as long as the employee is completely relieved from duty, which means that: (i) the employee is “told in advance that they may leave the job and they will not have to commence work until a specified hour,” or (ii) the employee may “freely choose the hour at which they resume working and the time is long enough for the employees to effectively use their own purposes.” 

The DOL provided several examples of flexible remote work arrangements in which the employee’s break time would not be compensable. In the first example, an employee is regularly scheduled to begin work at 7:00 a.m., but is permitted to take a break from 8:00 a.m. to 9:00 a.m. each day to get their child ready for school (or otherwise use the time as they choose). That break would not be compensable. In the second example, an employee with an 8-hour workday has an agreement with the employer to work from 9:00 a.m. to 4:00 p.m., take a three-hour break to use however they choose, and then work one additional hour in the evening. That break similarly would not be compensable.

Second, the DOL addressed the FLSA’s requirement that employers provide reasonable break time and space for employees to express breast milk for their nursing child. The DOL explained that the requirement to provide a space that is “shielded from view” also applies to employees working from home, and includes “ensuring that an employee is free from observation by any employer provided or required video system,” such as computer cameras, security cameras, and web conferencing platforms. The DOL also reiterated that breaks to express breast milk are compensable if the employee is not completely relieved from duty during the break—as, for example, if they express milk while attending a video meeting from home with the camera off.

New FMLA Guidance

In the Field Assistance Bulletin, the DOL also addressed the FMLA’s eligibility requirements as applied to employees working remotely. The DOL noted that regardless of the employee’s worksite or remote work arrangement, the same principles apply in determining whether the employee has worked the requisite number of hours (1,250 hours in the preceding 12 months). With respect to the requirement that at least 50 employees be employed within a 75-mile radius of the employee’s worksite, the DOL explained that for employees working from home, the relevant worksite is not their residence—instead, it is “the office to which they report or from which their assignments are made.” Thus, as an example, if a company has 300 employees, many of whom work remotely from different states but all of whom receive assignments from the company’s headquarters, the 50-employee requirement is met with respect to all employees. Under this guidance, more remote employees are likely to meet the FMLA’s eligibility requirements than employers may have previously assumed.   

In the Opinion Letter, the DOL addressed the question of whether an employer with an FMLA-covered serious health condition is required to allow an employee to use FMLA leave to shorten their workday to 8 hours on a regular basis, where the regular schedule for the position would otherwise be more than 8 hours per day. The employer sought confirmation that while a reduced schedule might be an appropriate accommodation under the Americans with Disabilities Act (ADA), it was not obligated to allow such an employee to use FMLA-protected leave to achieve a reduced schedule. The DOL rejected this position, explaining that employees who are eligible for FMLA leave must be permitted to take it on an intermittent or reduced schedule basis, in increments of as little as one hour (or less, if smaller increments are permitted for other types of leave). The DOL noted that providing a reduced schedule as an accommodation might be less favorable to the employee because, for instance, the employee might become ineligible for group health insurance benefits—whereas the employer would be required to maintain group health benefits for the same employee for any period where the reduced schedule was accomplished through use of intermittent FMLA leave.  

The DOL further stated that eligible employees must be permitted to use FMLA leave on an intermittent basis until they have exhausted their leave, and that if the reduced schedule does not result in the employee using the equivalent of 12 weeks of leave in a 12-month period, the employer is required to provide it indefinitely. Further, the number of hours of FMLA leave the employee is entitled to take must be calculated based on the employee’s regularly scheduled workweek, not based on the reduced workweek. Thus, an employee who is regularly scheduled to work a 50-hour week (not counting voluntary overtime) would be entitled to 600 hours of FMLA leave in a 12-month period, which they could use to shorten their schedule to 40 hours per week. 

Finally, the DOL observed that if an employee who requires a reduced schedule exhausts their FMLA leave, the employer would have a separate obligation to consider continuing the reduced schedule as a reasonable accommodation under the ADA.   The DOL also observed that an employee may offer, and an employee may voluntarily choose to accept, a reduced schedule as a reasonable accommodation in lieu of taking FMLA leave.

Next Steps For Employers

Given this new guidance, employers with remote workforces should check their wage and hour and FMLA policies to make sure these points are accurately reflected. Employers should also keep in mind that remote employees’ places of residence will still be relevant for various other employment law purposes, including determining eligibility for paid sick leave and paid family leave under state or local law.

Employers should also check their FMLA policies to ensure they are consistent with the new guidance regarding intermittent leave, which applies to all eligible employees (not just remote employees), and consider the potential applicability of the FMLA policy when an employee requests a reduced schedule as an accommodation.


If you need assistance reviewing your policies pertaining to remote workers and/or the use of FMLA to ensure compliance, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.

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